The Statutory Bars

A couple of posts ago I wrote that an artical directed at software companies that may want to file patents. That post talked a bit about the so called "statutory bars" to patentability. These statutory bars are applicable to more than just software patents. Therefore, this post is designed to set out a bit more information about the statutory bars in a more general way.

A valid patent may not be obtained if for more than one year prior to the filing of a patent application, your invention has (1) been "in public use," or (2) has been "published" in some manner which allows a public viewing of it, or (3) has been "offered for sale" in this country.

Your own use and sale of the invention for more than a year before your application is filed will "bar" your right to obtain a patent just as effectively as though this use and sale had been done by someone else. In today's world it is important to remember that "publication" or an "offer for sale" can occur via the internet. Additionally, any sale, publication, or disclosure of the invention prior to the filing of a United States patent application will destroy the possibility of obtaining foreign patent protection in most foreign countries.

The U.S. Patent Office does recognize an "experimental use" exception to this rule, which prevents the one year clock from running if it can be shown that a public display or use was part of an ongoing experiment to test and improve the invention. However, praticially speaking, proving "experimental use" is a chore and therefore an inventor should try to not to rely on it in order to minimize costs.